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SOME POWERS AND 

PROBLEMS OF THE FEDERAL 

ADMINISTRATIVE 



ARTICLE 



BY 



JASPER YEATES BRINTON 

ASSISTANT UNITED STATES ATTORNEY 

REPRINTED FROM THE 

UNIVERSITY OF PENNSYLVANIA LAW REVIEW 

JANUARY. 1913 



^^ 



PRESENTED BY MR. SUTHERLAND 
January 30, 1913. — Ordered to be printed 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1913 



J\ 



D. OF D. 
FEB 8 1918 






vi \ 






.t>1 



SOME POWERS AND PROBLEMS OF THE FEDERAL ADMINISTRATIVE.' 



A dawning progressive era, with its new conception of Federal 
responsibility to the general welfare, daily emphasizes the increasing 
vital importance of the administrative function in the Federal Gov- 
ernment. Whether it be the establishment of a Children's Bureau,^ 
foreshadowing, let us hope, the Federal regulation of interstate com- 
merce in child-labor products, or whether it be an elaborate system 
for the regulation of radio communication,^ or merely a "phossy- 
jaw" act, imposing a prohibitory tax on white phosphorus matches,* 
or the establishment and enforcement of a national standard for bar- 
rels of apples,^ each succeeding Congress witnesses some new and sig- 
nificant responsibility imposed upon the administrative system, and 
touching more or less intimately a large portion of the people. The 
vexing problems of the future will no longer be the great constitutional 
problems of ascertaining what may be done, or even the broader 
political problems of deciding what should be done, but will be the 
purely administrative problems of establishing really effective ways 
and means of carrying out the people's will. 

A correct appreciation of the position of the administrative in our 
constitutional system is therefore a matter of increasing importance 
alike to all whose duty it is either to make, to enforce, to interpret, 
or merely to obey the laws, though the subject, strangely enough, is 
one which several causes have contributed to obscure. 

For the one thing, the growth of the Federal administrative system 
has been comparatively slow and singularly free from oppressive 
features calculated to arouse public hostility or criticism. Then too, 
for one reason or another, perhaps chiefly because few persons have 
opportunity or occasion to observe closely more than one small feature 
of its operation at a time, the whole field of the Federal administrative 
seems to have taken on itself in the mind of the average lawyer, 
hardly less than of the average layman, an atmosphere of strangeness 
and almost of mystery. 

Finally, there has always been present the natural and proper 
reluctance of the American, born of his jealously guarded An^lo- 
Saxon principle of equality before the law for citizen and sovereign 
alike, to tolerate the existence, or the suggestion of the existence, 
of any separate science or jurisdiction of administrative law, such 
as is reflected in the droit-administratif of continental Europe, a 
reluctance natural to the genius of our political system, but not cal- 

1 This article is an elaboration of an address before the Sharswood Law Club of the University of Penn- 
vania, at its annual banquet, 1912. 

2 Act Apr. 9, 1912, Vol. I, Sessions Laws, 2d sess., 62d Cong., chap. 67, pp. 79-80. 

3 Act Aug. 13, 1912, Vol. I, Sessions Laws, 2d sess., 62d Cong., chap. 287, pp. 302-308. 
< Act Apr. 9, 1912, Vol. I, Sessions Laws, 2d sess., 62d Cong., chap. 76, pp. 81-84. 

5 Act Aug. 3,1912, Vol. I, Sessions Laws, 2d sess., 62d Cong., chap. 273; pp. 250-251. 

3 



4 POWERS AND PEOBLEMS OF THE FEDERAL ADMINISTRATIVE. 

culated to encourage definiteness or familiarity of outline in the ])rin- 
ciples guiding Federal administrative development. 

It is the ]:)uri)ose of the present article to illustrate in a general 
•way the constitutional limitations of this development, to indicate its 
present tendencies, to suggest and discuss a few of its problems, and 
to measure, to some extent, at least, the promise of its future. 

CONSTITUTIONAL RESTRICTIONS. 

The princii)al restrictions of the Constitution limiting the other- 
wise unlimited jiower of Congress in the matter of administrative 
methods for the conduct of the Government's business are to be found 
in the familiar doctrines of the separation of powers and due process 
of law. 

The former of these principles, otherwise than in the case of the 
constitution of many States, is not specifically defined in the Fed- 
eral Constitution, but is deduced from the various clauses separately 
creating and defining executive, legislative, and judicial powers.* 
In eftect, it declares that these several powers shall be vested in 
separate and independent governmental organs, and that one shall 
not encroach upon the powers of another. 

In practice, however, we find that this great principle, the contri- 
bution to political science of the statesman Montesquieu, can not be 
and has not been rigidly interpreted. The exigencies of practical 
government demand that each department shall exercise to a greater 
or less degree functions of a character strictly belonging to the other 
two branches of the Government, and as'was happily said by a North 
Carolina judge :- 

While the three powers ought to be separate and distinct, the science of govern- 
ment is a practical one, and it is not to be forgotten that the three coordinate parts 
constitute one Ijrotherhood whose common trust requires a mutual toleration in re- 
spect to the borders of their several domains. 

This "mutual toleration'' is indeed conspicuous in the Federal 
system, where we find an ever-increasing tendency on the part of 
the courts to support the right of Congress to lean upon the adminis- 
trative for the supplementing of legislation in all those matters where 
the administrative is peculiarly qualified for that purpose, as also the 
right of Congress to impose judicial duties upon administrative boards 
and tribunals, and the concurrent right to authorize the administra- 
tive branches of the Government to proceed with the enforcement of 
the laws intrusted to their care by administrative process closely re- 
sembling that commonly recognized as judicial. 

So, too, with the other great principle of due process of law, a phrase 
of which the Supreme Court itself has said that few are "so elusive 
of exact comprehension as this," and of which no more complete 
tlefinition seems to exist to-day than is to be found in the familiar 
phrase from Magna Charta, "the law of the land."^ The spirit of 
the interpretation of this principle in matters of administrative 
methods is finely reflected in the oft-quoted and inspiring language of 
Mr. Justice Matthews, speaking for the Supreme Court, in the case 

1 Calder v. Bull (3 Call., 386). 

2 Brown v. Turner (70 N. C, 93, 102). 

3 Davidson v. New Orleans (96 U. S., 97, 101); also see article on Judicial Construction of Fourteenth 
Amendment, by Francis J. Swayze, Harv. Law Rev., November, 1912. 



POWEES AND PROBLEMS OF THE FEDERAL ADMINISTRATIVE. 5 

which sustained the right of a State to alter the established rules of 
jury trial: 

There is nothing in Magna Charta rightly construed as a broad charter of public 
right and law which ought to exclude the best ideas of all systems and of every age; 
and as it was the characteristic principle of the common law to draw its inspiration 
from every fountain of justice, we are not to assume that the sources of its supply have 
been exhausted. On the contrary, we should expect that the new and various expe- 
riences of our situation and system will mold and shape it into new and no less useful 
forms. 1 

It would be a waste of time, however, to go further and to seek to 
define in the form of abstract statements the rules of law, deducible 
from these general principles, which control the extension of the ad- 
ministrative powers of the Government. The subject is by its very 
nature one in which illustration is the only satisfactory definition; 
and I purpose rather to present briefly, in concrete form, illustrations 
of some of the more characteristic and recent phases of administra- 
tive development, with a few observations on their practical opera- 
tion. 

EXPRESSION AND EXECUTION OF THE LAW. 

Before doing so, it is worth while to bear in mind that administra- 
tive power (as Prof. Goodnow points out in a very valuable and sug- 
gestive little volume,^ significantly enough the only serious attempt 
at a scientific outline of the subject which has yet appeared in this 
country), falls logically into two classes, the first concerning itself 
with the expression, and the second with the execution, of the will 
of the State. 

Of course, broadly speaking, the general will of the State is and 
must be primarily expressed by its law-making body, but this ex- 
pression must be supplemented by administrative action in two par- 
ticulars: First, in the matter of "filling in the details" of legislative 
acts, as for instance, by the adoption of regulations having the force 
of law; and second, in the matter of applying the will of the State 
thus expressed to the individual cases as they arise — a process in- 
volving first an administrative ascertainment of facts in a particular 
case, and thereafter an application to those facts of the appropriate 
rules of law. The two functions — the one touched with a legislative 
character, the other with a judicial — are of course readily distinguish- 
able. 

Still greater, however, is the distinction when we pass from the 
realm of expression to that of execution — that is, to the realm of the 
active forcible interference by the Government with the absolute 
freedom of the individual. 

Now, while some summary remedies are enforcable in propria 
persona by the citizen who has been wronged by his fellow citizen, 
for the most part such interference can be accomplished only by 
judicial process — the orderly formal process of the courts of law en- 
forcing their decrees by the issuance of ordinary and extraordinary 
writs, served and executed by sheriffs and marshals. Conceivably 
the State might also have been confined to such processes. From 
early days, however, it has been recognized that these processes were 

1 Hurtado v. California (110 U. S., 516). 

~ Principles of the Administrative Law of the United States, by Frank J. Goodnow, LL. D., Putnam's, 
1905. » 



6 POWEES AND PEOBLEMS OF THE FEDEEAL ADMINISTEATIVE. 

wholly inadequate to the prompt and efficient enforcement of laws 
vital to the very existence of Government. True, the courts could 
enforce the criminal law and thus preserve to the State a right to 
sanction obedience to its laws, or they could entertain civil suits 
against the citizen for disobedience to the laws; but these methods 
were plainly calculated to afford no more than a partial and tardy 
remedy for a wi'ong already done to the State and which the public 
welfare imperatively demanded should be wholly prevented or 
summarily redressed. And thus there were developed, of political 
necessity, the purely administrative processes to which we shall refer. 
In the illustrations to follow I have not made any attempt to sepa- 
rate instances of administrative expression from those of execution; 
the two functions being often naturally included as coordinate parts 
of a single administrative system. The distinction, however, is well 
worth keeping in mind as we proceed. 

COLLECTION OF TAXES. 

As might have been expected, one of the earliest conspicuous tests 
of the administrative principle arose in respect to a matter where 
the necessity for strong administrative control admitted of no argu- 
ment — the collection of taxes. The experience of the confederation 
sufficiently emphasized the truth, early proclaimed by the Supreme 
Court, that the prompt payment of taxes was vital to the existence 
of the Government. And so we find that tribunal consistently main- 
taining throughout our history not only the administrative right to 
determine what taxes were due — a function of expression — but also 
the right to adopt summary extra-judicial process of distraint for 
their collection — a function of execution. ''The idea that every tax- 
payer is entitled to the delays of litigation is unreason," ^ are the ex- 
pressive words of Justice Swayne, and no such delays have been 
permitted in the Federal system. 

In an early case ^ involving the collection by distress from a 
Government officer of an amount owed by him to the Government, 
it was strongly urged that the auditing of the account, the ascertain- 
ment of the balance due, and the issuance of process constituted an 
exercise of judicial power. In denpng the force of this contention, 
the court conceded that the auditing of accounts and ascertainment 
of money due was "in an enlarged sense a judicial act," but in sig- 
nificant language pointed out that ''so are all those administrative 
duties the performance of which involves an inquiry into the exist- 
ence of facts and the application to them of rules of law." This was 
simply one of those matters, said the court, which might have been 
made a subject of either judicial or administrative consideration, at 
the option of Congi'ess, and Congress havmg chosen the latter course, 
its decision would not be interfered with by the courts. 

These general administrative powers were further supplemented 
by the proposition that the courts would not, save in exceptional 
cases of great importance, such as those which involve threatened 
irreparable injury or cloud on the title of real estate, interfere by 
injunction with proceedings under such process, and never for the 

1 Springer v. United States (12 Otto, 58(i, 594). 

2 Murray's Lessee v. Holioken Land d; Improvement Co. (IS How., 272, 280). 



POWEES AND PEOBLEMS OP THE PEDEEAL ADMINISTEATIVE. 7 

mere purpose of questioning the legality of the tax assessed. Said 
the Supreme Court: 

It is a wise policy. It is founded in the simple philosophy derived from the ex- 
perience of ages that the payment of taxes has to be enforced by summary and strin- 
gent means against a reluctant and often adverse sentiment; and to do this success- 
fully other instrumentalities and often modes of procedure are necessary than those 
which belong to courts of justice.^ 

As the allowance of a suit against the Government is "an- act of 
beneficence,"^ and as the Government may, as stated, adopt the 
administrative methods of distress for the collection of a tax supposed 
to be due, it results that the administrative branches may be clothed 
with full and complete power both for the determination and col- 
lection of taxes due. 

As a matter of common justice, however, rather than of constitu- 
tional necessity. Congress has provided — 

both in the customs and in the internal revenue, a complete system of corrective justice 
in regard to all taxes imposed by the General Government, which in both branches is 
founded upon the idea of appeals within the executive departments. If the party 
aggrieved does not obtain satisfaction in this mode, there are provisions for recovering 
the tax after it has been paid, by suit against the collecting officer. But there is no 
place in this system for an application to a court of justice until after the money is 
paid.^ 

COLLECTION OF DUTIES. 

The same principles are strikingly emphasized in the matter of the 
collection of the customs revenue. In this instance, however, the 
hands of the admmistrative have been further strengthened by the 
recognition of the broad principle of the Government's peculiar 
control over commerce, a control so comprehensive that, to use the 
words of the Supreme Court, no individual has a "vested right to 
trade with foreign nations which is so broad in character as to limit 
and restrict the power of Congress to determine what merchandise 
may be imported into this country and how the right to import 
may be exercised."^ Under this broad power, the courts have 
uniformly supported the finality of the decisions of the Government \ 
administrative officials in the matter of the appraisement of mer- 
chandise, on the principle that "the interposition of the courts in the 
appraisement of importations would involve the coUection of the rev- 
enue hi mextricable confusion and embarrassment."^ The complete 
justification of this policy is well illustrated m the splendid record 
of the Board of General Appraisers. 

On the side of the classification of merchandise, however, as dis- 
tinguished from its appraisement, we are confronted with an interest- 
ing and very instructive contrast in the matter of governmental 
policy. 

Under the prmciple above illustrated it would undoubtedly be 
competent for Congress to place in the hands of an administrative 

V 

1 state Railroad Tax cases (92 U. S., 575, pp. 613-614). See also the following signiflcant expressions: 
"It may be added that probably there are few Governments which do or can permit their claims for public 

taxes, either on the citizen or officer employed for their collection or disbursement, to become subjects of 
judicial controversy according to the course of the law of the land." (Curtis, J., in Murray v. Hoboken 
Land, etc., Co., supra, 18 How., p. 282.) 

"If there existed ua the courts, State or National, any general power of impeding or controlling the col- 
lection of taxes, or relieving the hardship incident to taxation, the very existence of the Government might 
be placed in the power of a hostile judiciary." (MUler, J., in Chatham v. United States, 92 U. S., 89.) 

2 Nichols V. U. S. (7 Wall., 122, 127.) , 

3 State Railroad Tax cases, supra, at p. 613. 

« Butterfleld v. Stranahan (192 U. S., 470); The Abby Dodge (223 U. S., 166, Feb. 10, 1912). 
6 Bartlett v. Kane (16 How., 263). 



POWEES AND PROBLEMS OF THE FEDERAL ADMINISTRATIVE. 

J board, such as the Boartl of General Appraisers, the final decisions 
of all questions of classification equally with those of appraisement. 
To quote the words of our own great judicial President, when on the 
bench of the Circuit Court of Appeals for the Sixth Circuit in 1898, 
Congress ''may, if it sees fit, make the Secretary of the Treasury the 
final arbiter in any class of cases arising under the revenue laws, to 
determine in a quasi-judicial manner whether, by ^drtue of those 
laws, any claim against the Government has arisen in favor of the 
petitioner,"^ and what the Secretary could do, undoubtedly a board 
specially delegated by Congress for that purpose could do. 

In view, however, of the large financial interests often affected 
by decisions on classification, and of the further fact that such 
decisions frequently involve matters of legal construction as well 
s of definition, Congress has seen fit from the fh'st to grant a universal 
ppeal to the Federal courts from all decisions of the Board of Ap- 
raisers involvmg such questions. The working out of this policy, 
owever, hardly seems to have justified the high judicial character 
in which it has been clothed. 

Prior to 1890 all questions as to the classification of imported mer- 
chandise were triable before a jury, and from then on until the estab- 
lishment of the Court of Customs Appeals in 1909, such questions were 
triable in the circuit courts wdthout a jury, subject to appeal as of 
right (a right, it is to be observed, universally availed of in all cases 
of the slightest importance) to the circuit court of appeals, and to 
occasional review by the Supreme Court in cases of exceptional im- 
portance. 

I The result was to throw upon the local Federal courts of at least a 
/ dozen different and often widely separated districts a vast and bur- 
densome mass of litigation involving questions of a character pecu- 
I liarly adapted to induce dift'erence of judicial opinion and in a very 
I large measure entirely matters of commercial definition. 

Hopeless confusion of decision speedily resulted and also a worse 
evil in the cooperation of customs brokers and their attorneys to 
encourage delay in the final decisions of important questions, pending 
the accumulation of a large volume of protests on similar importa- 
tions and the resultant creation of a large stake dependent on the 
termination of the litigation, the benefits of wliich if successful were 
divided betW'een broker, importer, and attorney, and seldom if ever 
inured to the benefit of the purchasing public. 

It was largely to correct these abuses and the delay and uncertainty 

\oi conflicting decisions that the customs court Was established, and 

the necessity for its establishment is a striking illustration of the evil 

of a too generous extension of judicial procedure into administrative 

fields. 

To the writer, who for some six years spent many weeks of every 
year in the preparation and trial of such cases in the district and 
appellate courts, it seems clear that the interests of the importer, 
and certainly the interests of the public, would have been much better 
subserved from the beginning had all questions of classification, not 
involving some purely legal or constitutional aspect, been submitted, 
like all matters of appraisement, to the speedy and final determination 

1 Ferry v. U. S. (85 Fed., 550, 553); see also U. S. v. Shipley (197 Fed., 265, 269, C. C. A. 3d Cir., Gray, J.). 



POWERS AND PROBLEMS OF THE FEDERAL ADMINISTRATIVE. 9 

of the Board of United States General Appraisers, a singularly able 
body composed of nine lawyers and experts, whose history has been 
unmarked by scandal or serioUs criticism. Indeed, it is interesting 
to note that the members of this board receive salaries of $9,000, 
larger than that of the Federal district judges, and that on the creation 
of the new court, which is in effect but a dignified board of appraisers, 
the president of the board was selected as presiding judge. 

TEA INSPECTION ACT. 

Another strong expression of the administrative power in matters 
relating to the collection of the customs revenue is found in the unhesi- 
tating sanction given by the Supreme Court in 1903^ to the final 
authority vested by the tea inspection act in the Secretary of the 
Treasury to establish standards of imported tea upon the recom- 
mendation of the tea board, an administrative body of nine experts. 

This was a function of the administrative expression of the will of 
the State. On the side of the execution of that will however, the 
same opinion written by the present Chief Justice also contains an 
important declaration upholding, in ^he face of the most vigorous 
objection, the provision of the act commanding the administrative 
destruction of teas not exported wdthin six months after their fuial 
rejection. 

An interesting echo of this same power is to be found in a feature 
of the recent pure food act, which has been little brought to public 
attention, and under which the Secretary of the Treasury is author- 
ized to refuse delivery to and cause destruction of imported goods 
when determined by the Secretary of Agriculture to be misbranded 
or adulterated, and which are not exported or bonded within three 
months, the Secretary of Agriculture being the judge of the mis- 
branding and adulteration, and the Secretary of the Treasury being 
the executive arm to carry out the will of the State by the summary 
administrative process of destruction without the aid of the courts, 
a salutary administrative power under which every year many 
thousands of dollars' worth of deleterious food products are either 
exported or destroyed. 

This provision of the act has not been passed upon by the courts, 
but in a recent unpublished decision - under the plant quarantine 
act of 1912, Judge Hough, in language whose ''modern" temper is 
frankly conceded, sustains in no uncertain terms the right of the 
Secretary of Agriculture to enforce without interference from the 
courts the provisions of the act directing that official to exclude the 
plant products imported froiTi the countries where he shall have found, 
after "public hearing," certain plant diseases to exist. In denying 
the complaint that the Secretary had abused his discretion in the 
matter of notice of hearing, Judge Hough tersely remarked: "Speed 
was necessary and summary action justifiable," a conclusion entirely 
in accord with the declaration of the court that the matter was not 
one of judicial investigation, but "political — in a wide, but entirely 
proper sense of the word." 

1 Buttfield V. Stranahan, supra. '» 

2 U. S. V. 200 Bags of Potatoes (Nov. 4, 1912), not j'et reported. Circular 6C, Solicitor Department of 
Agriculture. 



10 POWEES AND PEOBLEMS OF THE FEDERAL ADMINISTEATIVE. 
INTERSTATE-COMMERCE ACT. 

The epoch-making labors of the Int'erstate Commerce Commission 
ilhistrate the same principle and are too familiar to require special 
notice here. It is sufficient to note that the recent decisions of the 
Supreme Court in substance declare that the findings of the commis- 
sion as to the reasonableness of rates and the existence of discrimi- 
nations are subject to review only when they involve the application 
of an erroneous ride of law, though wherein lies the distinction under 
I the act between questions of law and fact is a problem which for some 
[time past has been puzzling many of the ablest jurists of the country.^ 

PENSIONS AND LAND GRANTS. 

In sharp contrast to the example of "judicial administration" under 
the customs law above discussed, the broad subjects of pensions and 
\land grants furnish excellent illustrations of deliberately and care- 
I'ully designed administrative systems, exclusive of judicial review. 

Fortunately for the Federal courts, pension cases do not and can 
not fall within their jurisdiction. The widow of Admiral Decatur 
felt aggrieved, and for all we may know justly so, under the law, at 
the denial of lier plea to be entered on tlie pension rolls, and in due 
course her grievance found its way to the Supreme Court, where, in 
declining to entertain her ]:)etition, Justice Taney used these signifi- 
cant words :2 

The interference by the courts with the performance of the ordinary duties of the 
executive departments would be productive of nothing but evil, * * * the inter- 
position of the courts might throw the pension fund and the whole subject of pensions 
into the greatest confusion and disorder. 

Equally Inroad has been the attitude of the courts in the matter of 
Government land grants, into whose validity they have uniformly 
declined to inciuire except on the ground of want of jurisdiction; for 
otherwise, said the Supreme Court, in language strikingly suggestive 
of the situation which obtains to-day in the case of industrial patents, 
and well worth remembering in every field of administrative legisla- 
tion, the land patent, instead of becoming a means of peace and 
security to its holder "would subject his rights to constant and ruin- 
ous litigation."^ 

This attitude is most forcibly empliasized by the language of a 
recent case in which the Supreme Court laid down the proposition 
that. Congress having constituted "the Land Department under the 
supervision and control of the Secretary of the Interior, a special 
tribunal with judicial functions to which is confided the execution of 
the laws which regulate the purchase, selling, and care and disposi- 
tion of the public lands," the exercise of these functions is not review- 
able by the courts, and that neither an injunction nor mandamus will 
"lie against an officer of the Land Department and control him in 

1 See a very able and suggestive article by Henry AVolf Bikl6, Esq., in the U. of P. Law Review, Octo- 
herj 1911, pp. 1-lS, on the "Jurisdiction of certain cases arising under the interstate-commerce act," in 
which the author points out "that the power lodged in the members of tlie Interstate Commerce Commis- 
sion, touching as it does the daily life of all the people and affecting intimately the commercial relation- 
ship of cities and communities generally, discloses a vesting of authority in individuals to an extent hith- 
erto unknown in these United States." Also recent and important decision of Supreme Court in Procter 
& Gamble Co. v. U. S. (225 U. S., 282; June 7, 1912). 

2 Decatur v. Paulding (14 Pet., 497, 516). 

3 Riverside Oil v. Hitchcock (190 U. S., 316, 324). 



POWEKS AND PKOBLEMS OP THE FEDEEAL ADMINISTEATIVE. 11 

discharging an official duty which requires the exercise of his judg- 
ment and discretion. The Secretary/' said the court, "must exercise 
his judgment in expounding the laws and resolutions of Congress — • 
whether he decided right or wrong is not the question. Having juris- 
diction to decide at all, he had necessarily jurisdiction, and it was 
his duty to decide as he thought the law was, and the courts have 
no power whatever under those circumstances to review his determi- 
nation by mandamus or injunction. The responsibility as well as the 
power rests with the Secretary, uncontrolled by the courts. '^ 

The broad and exclusive character of the administrative discretion 
thus reposed in the Land Department has been made the subject of 
periodical attack. The reader interested in this subject will find the 
more familiar objections to the administrative powers of this great 
office well summarized in a debate in the House of Representatives 
which appears in the Congressional Record for May 14 last. It 
seems clear that the gigantic tasks imposed upon the Land Office 
include problems probably more intricate and perplexing than those 
imposed upon any other administrative bureau of the Government, and 
it may possibly prove that in some instances Congress has placed upon 
the bureau some responsibilities which should be shared by the courts. 
But however this may be, it is not likely that for practical purposes,, 
as actually affecting the interests of the public at large and of the 
settler, the importance of the administrative function will or can be 
in any great degree really lessened, and the problem must always, 
remain essentially an administrative one. 

DISCRETIONARY AND MINISTERIAL POWERS. 

The very broad character of the powers of the Land Department, 
as above declared, illustrate in its broadest scope the development of 
a principle which found its origin in the language of Mr. Justice Mar- 
shall in the celebrated case of Marbury v. Madison, '^ and which is of 
constantly increasing application in departmental matters. The 
familiar principle in effect declares that when Congress has commit- 
ted to the heads of administrative departments duties requiring the 
exercise of judgment or discretion, as distinguished from ministerial 
duties, their action, whether it involves questions of law or of fact, or 
both, will not be reviewed unless the courts are of opinion that the 
officer has exceeded his statutory authority, or that his action was 
''palpably wrong," and that even on a question of law alone their 
"action mil carry with it a strong presumption of its correctness." ^ 

POST OFFICE. 

The furthest extent to which this power of review will be exercised 
seems to be found in the several cases brought to test the right of 
the Postmaster General to deny admission to the mails as second- 
class matter of publications claimed to be entitled to entry as such, 
or 'to exclude from the mails matter supposed to be of fraudulent 
character. In these cases the Supreme Court has consented to 
review, and has occasionally reversed, decisions of the Postmaster 
General, where it appeared that his action on the conceded facts was 

. _ ^ . 

1 1 Cr., 137. 2 Bates & Guild Co. v. Payne (194 U. S., 106, p. 109). 



12 POWERS AND PROBLEMS OF THE FEDERAL ADMINISTRATIVE. 

a clear mistake of law.^ For the most part, however, the courts, 
/ while firmly sup])orting the princi])le that the exemption of the 
' United States from suit does not protect its officers from personal 
liability or injunction process in favor of persons whose rights of 
property they have wrongfully invaded by an act in excess of authority 
or under an authority not validly conferred, have been loath to dis- 
turb the administrative office in the exercise of its political function. 

IMMIGRATION. 

Another striking illustration of the liberal interpretation placed 
by the courts on the doctrines of due process and of the separation of 
powers is found in the judicial history of the Federal legislation relative 
to the enforcement of the immigration laws. In the face of the most 
persistent op])osition, frequently carried to the bar of the Supreme 
l' Court, the Federal courts have steadfastly recognized that the admin- 
istration of the laws regulating the admission of foreigners to our 
' country was intended by Congress to be, of necessity should be, 
' and under the Constitution might lawfully be, a purely administra- 
tive matter, and that the protection of the due-process clause meant 
|io more (and no less) than that every alien was entitled to a fair 
|iearing before a regularly established administrative tribunal.^ As 
a result of this attitude the flood of cases for a long time sought to be 
carried from the administrative to the judicial forum in the hopes of 
imposing political and administrative functions on the latter, and at 
least of benefiting tiie alien by the consequent delay in deportation 
with its incident possibilities, has been very materially lessened. 
IThe courts will now consent to hear only those cases involving an 
{allegation of a violation of some positive statutory declaration or of 
[an abuse of administrative discretion amounting in substance to a 
iJdenial of a hearing: and have gone so far as to sustain the right of 
tthe immigration authorities, subject to the permitted appeal to the 
'Secretary of Commerce and Labor, to pass finally upon the question 
of fact as to the place of birth of a person of Chinese descent claiming 
tliat he was born in, and therefore a citizen of, the United States.^ 

It is to be observed that the right which we have just discussed, a 

right of final decision in a matter involving the expression of State 

will, is also supplemented by the effective executive power not only 

"to detain physically by administrative process aliens held at the 

i border of the country subject to examination or to orders of deporta- 

j tion, but also to arrest on administrative warrant, and subsequently 

to deport, aliens arrested within the United Statos on the charge of 

having unlawfully secured entry to the country, or of having become 

public charges within one year after their admission. The validify 

of this latter power of arrest on administrative warrant has not as yet 

been passed on by the Supreme Court, but in a recent and able decision 

by the circuit court of appeals at Illinois, sustaining the right, the 

court remarked that while Congress might reasonablj^ have adopted 

' School of Magnetic Healing v. >rcAnnultv (187 U. S., 94); Public Clearing House v. Coyne (194 U. S., 
497); Omond G. Smith et al. v. Hitchcock (Sup. Ct., 31 and 32, Oct., 1912, not yet reported, Nov. 18, 1912); 
Philadelphia Co. v. Stinson (223 U. S., 605, Mar. 14, 1912). 

- Japanese Immigration case (189 U. S., 80); Gonzales v. Williams (192 U. S., 1); United States v. Sing 
Tuck (194 V. S., 161, 170). For latest lower court decisions, see 195 Fed., 701; 196 Fed., .'^72; 196 Fed., 437: 
196 Fed., 736; 199 Fed. (Adv. Sheets, Dec. 19, 1912). .\lso, see language of Gray, ,'., in Rodgers v. United 
States, (157 Fed., 381; C. C. A., 3d Cir.). 

3 I'nited States v. Ju Toy (198 U. S., 252). 



POWEES AND PKOBLEMS OF THE FEDERAL ADMINISTRATIVE. 13 

a different rule as to the hearings of aliens who had actually taken up 
residence from that applicable to aliens arriving in the country, they 
had not seen fit to do so, and that the enforcement of the law was ' ' vested 
exclusively in the designated executive department for hearing, ascer- 
tainment of tlie facts, and rulings thereon, 'without judicial inter- 
vention.' "^ 

It is said that under the rigid enforcement of the law of deportation 
the State of New York alone will probably be saved $1,000,000 an- 
nually in the maintenance of alien paupers. 

ABUSE OF JUDICIAL FUNCTION. 

The fii^m and altogether beneficial repudiation by the courts of the 
attempt to impose upon them purely political duties in the matter of 
passing on the qualifications of alien immigrants suggests, in passing, 
at least two other duties of a nature more properly political than ju- 
dicial, and whose performance must often prove burdensome and 
irritat'mg; first, the duty, or at least the duty as generally accepted, 
of acting as examining schoolmaster for all applicants for naturaliza- 
tion ; 2 and second, the duty of personally examining and approving 
a veritable multitude ot petty accounts presented by Government 
officials.^ As to the former, all the advantages to be derived from 
surrounding with the dignity and solemnity of judicial proceedings 
the induction of foreigners into the rights of citizenship could be 
equally well preserved without imposing upon a United States district 
judge the political duty of ascertaining the applicant's elementary 
qualifications for citizenship; as to the latter, the duty is either 
onerous and a misdirection of valuable judicial time and labor, or, as 
perhaps sometimes happens, if not taken seriously, is equally beneath 
the dignity of a United States court.* 

PROCESS UNDER IMMIGRATION LAWS. 

But to resume the main thread of our illustration, we note an even 
more striking example of administrative process than those before 
discussed in the provisions of the unmigration laws authorizing the 
Secretary of the Treasury to impose fines on shipowners bringing 
prohibited aliens to the United States on its appearing to his satisfac- 
tion that the disability might have been detected at the port of em- 
barkation by a proper examination — an authority supplemented by 
the very effective power to enforce payment of this fine by withhold- 
ing clearance of the vessel pending the determination of the question. 

The validity of these broad and stringent provisions was stub- 
bornly and bitterly contested in the Supreme Court, but without 
avail, the court, in a characteristically trenchant opinion ^ by ]\fr. 
Justice White, holding that it is competent for Congress "when 
legislating as to matters exclusively within its control, to impose 
appropriate obligations, and sanction their enforcement by reasonable 
money penalties, giving to executive officers the power to enforce 

1 Prentis v. De Giacomo (192 Fed., 467; 1911). 

2 Sees. 4 and 9, immigration act, June 29, 1906, as amended (34 Stat. L., Ft. I, p. 596). 

3 Sec. 1, act Feb. 22, 1875, ch. 95 (IS Stat L., 333). 

■*For other cases where the Federal courts have refused to assume administrative and nonjudicial duties 
sought to be imposed upon them see Haybum's cas.e (2 Dall..409); United States v. Ferreira (13 How., 40); 
Gordon v. United States (2 Wall, 561): Re Sanborn (148 U. S., 222). 

6 Oceanic Navigation Co. v. Stranahan (214 U. S., 320). 



14 POWERS AND PEOBLEMS OF THE FEDEEAL ADMINISTRATIVE. 

such penalties without the necessity of invoking the judicial power." 
To the argument that the distinction between judicial and adminis- 
trative functions could not be preserved consistently with the 
recognition of an administrative power to enforce a penalty without 
resort to a judicial tribunal, the great Chief Justice replied: "The 
proposition magnifies the judicial to the detriment of all other depart- 
ments of the Government;" while to the argument that grave abuses 
might arise from the mistaken or wi-ongful exertion by the legislative 
department of its authority he boldly replied that the contention in 
efl'ect intimated "that if the legislative power be permitted its full 
sway within its constitutional sphere harm and wrong will follow, 
and therefore it behooves the judiciary to apply a corrective by 
exceeding its own authority," a proposition which "mistakenly 
assumes that the courts can alone be safely intrusted with power." ^ 

REGULATIONS AND STANDARDS. 

Probably no more interesting extension of administrative powers 
is to be observed than that which concerns itself with the issuance of 
departmental regulations and the establishment of standards, a 
power that has been happily termed by Justice Marshall, the "power 
of 'filling up the details' of legislative enactment." 

The attitude of the Federal courts is perhaps best summarized in 
the terse and vigorous words of a great justice of the Supreme Court 
of Pennsylvania, as subsequently adopted by the Supreme Court of 
the United States i^ 

The legislature can not delegate its power to make a law, but it can make a law to 
delegate a power to determine some facts or state of things upon which the law makes 
or intends to make its own action depend. To deny this would be to stop the wheels 
of government. There are many things upon which wise and useful legislators must 
depend which can not be known to the law-making power, and must therefore be a 
subject of inquiry and determination outside the hall of legislation. 

REGULATIONS AS DEFINING CRIMES. 

The latest and perhaps most striking illustration of this great 
power is to be found in the forest reserve act of 1897, in which 
Congress, recognizing the impracticabiUty of providing general 
regulations that would cover the varied needs of the forest reserva- 
tions of the country, and the necessity at the same time of providing 
unishment for the infringement of the public rights, provided 
roadly that the Secretary of Agriculture should have power to 
^'make provision for the protection against destruction by fire and 
depredations upon the public forests and forest reservations * * * 
and he may make such rules and regulations and establish such 
Service as will insure the objects of such reservation; namely, to 
regulate theu' occupancy and use, and to preserve the forests thereon 
from destruction; and any violation of the provisions of this act or 
such rules and regulations shall be punished," by a fine not exceeding 
$500 and imprisonment not exceeding one year. 

1 Compare the following emphatic language of Mr. Justice Catron in his concurring opinion in Decatur v. 
Paulding (14 Pet, 497, at p. 522). "Every Government is deemed to be just to its citizens; its executive 
officers, equally with the judges of the courts, are personally disinterested; and why should not their 
decisions be as satisfactory and final? They must be final in most instances, in the nature of things and the 
necessities of the Government. * * * To permit an interference of the courts of justice with the account j 
nnd affairs of the Treasury, would soon sap its very foundation." 

2 Field V. Clark (143 U. S., 649). 



POWEES AXD PROBLEMS OF THE FEDERAL ADMINISTRATIVE. 15 

This act granted to the piibHc the privilege of using the forest 
reserves for all lawful purposes subject to compliance "with the rules 
and regulations covering such forest reservation" one of which regu- 
lations as promulgated by the Secretary prohibited the grazing of 
sheep. 

On the first argument of the case, the Supreme Court ^ was, in 
March, 1910, equally divided in opinion as to the validity of a con- 
viction under this regulation; on a subsequent argument in 1911, 
however,^ after the membership of the court had been increased by 
three, the court reached the unanimous conclusion that the regulation 
in question was a valid exercise of administrative power. 

Other significant applications of this principle are to be found in 
the decisions of the Supreme Court sustaining the right of the Secre- 
tary of War to decide finally what are unreasonable obstructions in 
bridges of insufficient height ^ and the right of the Commissioner of 
Internal Revenue to decide what brands should be required to be 
placed upon tubs of oleomargarine subject to Federal tax," as also the 
power of the Interstate Commerce Commission to make reasonable 
rates ^ and to prescribe the manner in which accounts should be kept 
by interstate carriers.^ 

On the side of the establishment of standards the principle is also 
illustrated by the pbwers of the tea board, to which we have referred, 
as also the power of the Interstate Commerce Commission to fix the 
standards of uniform height for railroad drawbars,^ and is sooner or 
later bound to be illustrated by an administrative system for the fixing 
of food standards. 

NECESSITY FOE FOOD STANDARDS. 

At the time of the passage of the Federal pure food act unsuccessful 
attempts were made in both the Senate and the House to give the 
Secretary of Agriculture power to establish such standards. The 
attempt was well meaning but too hasty. The objection to it was 
thus voiced by Senator Lodge: ' 'If we are going to give a Government 
board the power to establish standards we ought to do so by careful 
legislation and not by a paragraph in an appropriation bill in the last 
days of a short session," but no constitutional objection to such a 
power was, or is likely to be suggested; and the existence of such a 
power has been expressly recognized by a recent decision in the 
Circuit Court of Appeals for the Eighth Circuit.* 

Under the act of 1903, however, the Secretary of Agriculture has 
been authorized "in collaboration with the Association of Official 
Agricultural Chemists and such other experts as he may deem nec- 
essary, to establish standards of purity for food products," and as 
standards adopted under this power were in existence at the time of 
the adoption of the present pure food law, they have been acted on 
by the department and have been given at least prima facie validity 
by the courts. 

1 U. S. V. Grimaud (216 U. S., 614). 

2 U. S. V. Grimaud (220 U. S., 506, May 3, 1911). 
s Union Bridge Co. v. U. S. (204 U. S., 364). 

4 In re Kbllock ( 165 U . S . , 526) . 

5 Interstate Commerce Commission v. Chicago, Rock Island, etc., R. R. (218 U. S., 88). 

6 Interstate Commerce Commission v. Goodrich Transit Co. (224 U. S., 194, Apr. 1, 1912). 
^ St. Louis & Iron Moiuitain R. R. v. Tajior (210 U. S., 281, 287). 

8 U. S. Stat., sees. 2933-2937. 



16 POWERS AXD PROBLEMS OF THE FEDERAL ADMINISTRATIVE. 

To be really effective, however, further authority is necessary, and 
it seems clear to the writer that the interests of manufacturer and 
public alike would be benefited by a carefully established system 
lor the promuljjation of standards not only as to foods, but also, to 
some extent as least, as to labels, by a highly responsible adminis- 
trative tribunal of the general nature and same high character as the 
Board of United States General Appraisers. In the case of food, as 
in the case of imports, what the manufacturer really desires most is 
to know, and know ])romptly, what is expected of him, and not to be 
compelled to ])ay for this knowledge with the grave hazard to his 
business reputation involved in a jury trial. 

As the law now stands, it frequently happens that reputable mer- 
chants and manufacturers who find themselves or their goods, as 
they believe, mistakenly placed under the ban of the law, are never- 
theless forced by the prospect of expense, delay, and, most of all, 
publicity, to welcome an opportunity to plead guilty as inconspicu- 
ously as ])ossible to the information against them or to consent quietly 
to an order of forfeiture of their goods. 

This, of course, is a serious evil, and it is to be hoped that the near 
future will develop some less formal and less expensive, but no less 
responsible administrative system by which every manufacturer may 
have the opportunity of submitting his contention with the Govern- 
4ment in the first instance to an administrative tribunal of the 
character above indicated.^ 

These suggestions looking to administrative efficiency of the food 
and drugs act suggest the last general class of illustrations of admin- 
istrative power to which we will refer, to wit, administrative process 
for foi-feiture. 

ADMINISTRATIVE PROCESS FOR FORFEITURE. 

While, as has been shown, adulterated goods when detected at 
the borders of our country, are summarily export-ed or destroyed, 
the seizure of adulterated food products carried in interstate com- 
merce requires the preliminary issuance of judicial process, a pro-^ 
cedure frequently involving delay fatal to the enforcement of the 

' Since the above article went to press, President Taft, in his special message of Dec. 19, has advocated 
the establishment of some such "tribunal of appeal." Referring to the Remsen Board, created by President 
Roosevelt, the President u.ses this language: 

"I heartily agree that it was wise to create this board in order that injustice might not be done. The 
questions which arise are not generally those involving palpable injury to health, but they are upon the 
narrow and doubtful line in respect of which it is better to be in sonie error not dangerous than to be radi- 
cally destructive. I think that the time has come for Congress to recognize the necessity for some such 
irilnuial of appeal and to make specific statutory provision for it. While we are struggling to suppress an 
evil of great proportions like that of impure food, we must provide machinery in the law itself to prevent 
its becoming an instrument of oppression, and we ought to enable those whose business is threatened with 
annihilation 1o have some tribunal and some form of appeal in which they have a complete day in court." 

Phe concluding language of the President of course refers to a day in ah administrative court liefore the 
institution of judicial proceedings, and the inevitable injury therefrom resulting, irrespective of the final 
outcome, as indicated above. 

Equally significani upon this point was the statement of Dr. Alsberg, the distinguished biologist who 
has recently been appointed by President Taft to the position of Chief of Bureau of Chemistry to succeed 
Dr. Wiley," and which appears in an interview, evidently authoritative, published in the Philadelphia 
Public Ledger, Sunday, December 22, 1912. Referring to the necessity for the establishment of food 
standards. Dr. Alsberg says: 

"I believe that most manufacturers and handlers of foodstufi's want to do the right thing, but most of 
them don't know exactly what is the right thing. The whole subject of food inspection and the demand 
for pure foods is new. When the Bureau of Chemistry was established there were no standards, no guides 
of any sort. Everything had to be worked out, and it's been slow work. Only a few things definitely 
have been determined for this analysis of foods. To establish standards is not "the work of days but of 
years. When we arrive at what is the standard then we must show the manufacturer how to bring his 
l)roducts up to the standard." 



POWEES AND PEOBLEMS OF THE FEDEEAL ADMINISTEATIVE. 17 

law. It seems clear that there should at least be provision made for 
administrative seizure as a mode of instituting proceedings, to be 
followed by the customary judicial proceedings necessary to a con- 
demnation of forfeiture. 

In some other cases, however, it is to be noted that the Supreme 
Court has sustained the administrative processes both of seizure and 
destruction. Thus the Supreme Court has sanctioned a State act^ 
authorizing the summary destruction by any person of fish nets exist- 
ing in violation of law, and a lower Federal court has also sustained 
provisions of the customs laws, which have been in force since the 
first half of the last century, providing for the summary seizure and 
forfeiture of all smuggled merchandise not exceeding $500 in value. ^ 
In the first of these cases the Supreme Court, curiously enough, placed 
its decision upon the ground that the property involved was of trifling 
value, and intimated that if the same had been of great value it 
might well be that such a summary power could not be provided, 
while in the customs case the court pointed out that the purpose of 
the act was to save the Government the expense of proceedings for 
judicial condemnation of property forfeited in cases where the prop- 
erty was of inconsiderable intrinsic value. In each case it must also 
be noted that the owner of the property seized was not deprived of a 
remedy, but that on the one hand he was privileged to retake his 
nets on bond before destruction or to sue for their value after seizure, 
while in the other case he had the privilege of taking his case to court, 
upon making a proper formal application and protest against the 
action of the customs officials. In the food and drugs act of 1906, 
however, we have already noted a radical extension of this principle 
in the right of the Secretary of Agriculture in certain cases to- cause 
the destruction of adulterated goods. Since, unlike the customs 
forfeiture above referred to, no appeal to the courts is provided for 
in this case, it seems clear that an owner of goods which had been 
condemned under this provision and who had refused to export the 
same, would not be entitled to have the question of misbranding and 
adulteration reviewed by the court upon a retaking of the goods by 
him by legal process, notwithstanding the fact that the provisions 
made no discrimination based on the value of the goods thus covered. 

The same observation would apply to the opium act of 1909/ au* 
thorizing the executive seizure and forfeiture of imported smoking 
opium, although Attorney General Knox denied the existence of 
such a power under the Alaska seal act,* which provided that all 
sealskins thereafter imported "shall be seized and destroyed by the 
proper officers of the United States," his opinion, however, being 
based upon the conclusion that no such authority was intended to 
be granted, it being assumed that such power, if granted, would have 
been unconstitutional. In the determination of these questions, how- 
ever, the peculiar control, already above referred to, which Congress 
exercises over the importation of goods is, doubtless, a very largely 
controlling element. 

1 Lawton v. Steele (152 U. S., 133); cf. Garbage Cases (199 U. S., 306 and 325). 

2 McGuire y. Winslow (26 Fed., 304). 

3 35 Stat. L., 614. See recent and interesting opinion of the Attorney General to this effect, rendered to 
the Secretary of the Treasury under date of Dec. 21, 1912. 

< Act Dec. 27, 1897, 30 Stat., 226, sec. 9, 24 Op. A. G., 577, 578. 

S. Doc. 1054, 62-3 2 



18 POWERS AND PROBLEMS OF THE FEDERAL ADMINISTRATIVE. 
FORFEITURE OF EFFECTS OF DESERTING SEAMEN. 

In this CDnnection it is interesting to note that for practical pur- 
poses a power of summary seizure is found in ths ver}'' interesting 
provisions of the Federal statutes relative to the disposition of the 
effects of deserting seamen. For instance, the law provides for the 
forfeiture, not only of the wages, but of the clothes and effects left on 
board a vessel by such deserters, and another section of the law ^ pro- 
vides that all such clothes and wages which under the above-named 
section are forfeited for desertion shall be applied, in the first in- 
stance, in payment of the expenses occasioned by such desertion to 
the master, etc., the balance, if any, to be paid to a United States 
shipping commissioner, to be by him paid over to the judge of the 
circuit court, who in turn is required in his discretion to pay over any 
such unclaimed wages to the Treasury of the United States into a 
fund for the relief of sick and disabled and destitute seamen. 

Under this law, it is to be observed that not only does the master 
have the right summarily to seize as forfeited so much of the effects 
of a seaman as are necessary to discharge the master's claim, but in 
actual practice the effects and money paid over to the court are, in 
the absence of any claim, paid directly into the Treasury, without 
proceedings according to law to obtain a judgment.^ 

Indeed, the entire subject of the jurisdiction and summary powers 
of United States shipping commissioners is one which furnishes a 
most interesting study in administrative process, and supplies in 
practice perhaps the most conspicuous justifications of summary 
process to be found in our entire Federal system. 

MISCELLANEOUS SEIZURES. 

So far as it has come to the attention of the writer, except in the 
case of the summary destruction of nonmailable matter, which there- 
fore could not be legally delivered, and as to which no one could 
therefore assert a legal claim, the only other provision in the Federal 
.system looking to a summary destruction of any property without 
I appeal to the courts is that which is contained in one or two pro- 
visions of the internal-revenue laws, such, for instance, as the provision 
that any revenue officer may destroy any emptied cigar boxes upon 
which an internal-revenue stamp may be found, and even in such 
case as this an aggrieved citizen would, in theory at least, have a 
remedy by an action which would raise in the courts the issue as to 
whether the cause for the destruction had existed, since if such cause 
had not existed the act would have been illegal and subject to redress. 
How far Congress will be compelled in the future to resort to admin- 
istrative process for forfeiture of property can not now" be predicted, 
but with the large and increasing extension of the Government's 
responsibilities in the field of interstate commerce, involving the 
dealing on a large scale with articles which, to quote the language of 
the Supreme Court in a recent case under the food and drugs act, are 
to be looked upon as "outlaws of commerce,"^ it is highly probable 
that we may expect to find a wide, though carefully guarded, exten- 
sion of this power. 

1 R. S., 4596, -1604. 

« Opinions of Attorney General, 520. 

3 Hipolite Egg Co., v. U. S. (220 U. S., 45, 58; 1911). 



POWEES AND PROBLEMS OP THE FEDERAL ADMINISTRATIVE. 19 
GENERAL CONCLUSIONS. 

In conclusion, let me venture a few personal observations on the 
system we have been considering, which are the result of some years' 
experience in an office which occupies in effect largely the position 
of intermediary between the administrative and judicial branches of 
the Government. 

In the first place, it seems abundantly clsar that whatever may 
have been the attitude of the State courts, the Federal courts have 
placed themselves in the forefront in the firm recognition of the 
fundamental distinction between administrative functions on the 
one hand and judicial functions on the other; in other words, in the 
recognition of the practical exigencies of efficient government, and 
that we may rest assured that as the extension of Federal responsi- 
bilities continues, the new methods which experience shall compel 
us to adopt for the solution of the vast and as yst almost unrealized 
problems of the future need fear no jealous hindrance from the 
Federal courts, and will find no strait-jacket in the Constitution. 
^ ^^ In the next place, it is impossible to avoid the conclusion that for 
*-'=**''aIf practical purposes the real interests of the citizen in his relation to 
the Federal system must continue forest more and more in the personal 
character of those who go to make up the great administrative army 
of the Government. For it is becoming increasingly obvious that 
administrative methods are fundamentally different from judicial 
methods and that any attempt to impose administrative and political 
duties on the courts would in the end surely result in seriously ham- 
pering the courts in the conduct of their judicial functions, and must 
with equal certainty fail in all the essentials of efficient administration. 

What the citizen demands in his personal relations with the Gov- 
ernment is, primarily, efficient and responsible administration rather 
than a carefully elaborated privilege of a resort to "constant ruinous 
litigation" to cure the effects of administrative error. 

This situation suggests the inevitable necessity for a new interest 
in and study of administrative methods and a new attitude toward 
the administrative office and its holder. 

Great as are the evils of bureaucracy, their cure is not to be found 
in the narrowing of administrative responsibilities or in the tightening 
of judicial control. By responsibility only can we develop efficiency, 
and what seems to be needed is rather a recognition of the true impor- 
tance of the administrative system and a scientific study of adminis- 
trative problems. 

It must be clear to all who have studied the historical development 
of the Federal administrative system that, to a large extent, the 
growth of this system has been haphazard, and that many of the 
various administrative experiments have been devised with little 
regard for the experience of the past or to any definite principles of 
administrative procedure. The result is that some parts of the sys- 
tem are notably more efficient than others and that little or no 
attempt has been made to coordinate the whole. '' 

The greatest divergence exists in the matter of departmental 
appeals, and probably the greatest lesson of this entire experience is 
to be found in the notable success of the higher and more carefully 
designed administrative tribunals, such, for instance, as the Inter- 



20 POWERS AND PROBLEMS OF THE FEDERAL ADMINISTRATIVE. 

state Commerce Commssion, the tea-inspection board, and the Board 
of General Appraisers. It seems to be the universal experience that 
where a citizen is afforded the opportunity for a fair and informal 
submission of his case to one of these great administrative tribunals, 
where on the one hand the problem is unfettered by the restrictions 
of judicial procedure, and where on the other he is afforded, and is 
made to feel that he is afforded, absolutely equal rights with his Gov- 
ernment, little criticism is heard, t"" 

-'' And here let us note with emphasis that apart from the high char- 
acter and ability of these tribunals, a character which there should be 
no difficulty in maintaining in the future, the most hopeful safeguard 
of such a system, and one which is not always available in the case 
of purely intradepartmental appeals, is and always should be its 
unrestricted exposure to the influence of that greatest of all solvents 
for public ills — publicity. 

But it is equally clear that, coincident with the safeguarding of 
administrative methods, there must be an awakening to the true 
importance of the administrative office as such and a new sense of 
public responsibility for the development of a broader outlook and 
freer spirit among the great army of administrative officials upon 
whose initiation of administrative actions the interests of the citizen 
for practical purposes really depend. 

In a recent study of English political life,^ Mr. Graham Wallas 
remarks that "the intellectual life of the government official is becom- 
ing part of a problem which every year touches us all more closely." 

The observation comes home with special force to America. The 
judiciary is justly exalted among us, the legislative life is in touch 
on all sides with the opinions of the day, and on every side is at least 
afforded the encouragement and opportunity for growth. But not 
so the men and women in the ranks of the administrative army, 
whose duty it is to execute the law and from whose ranks must 
eventually come all the real development and responsibility of the 
administrative system of the future. 

As administrative problems increase in complexity and responsi- 
bility, just so fast must the great profession of the administrative 
official become more and more a matter of special training and of life 
work, and the efficiency of the system will never lie in the ability of 
the particular Cabinet officer who from time to time may be the titular 
head of a department, but in the solid training and in a very real sense 
the ''intellectual life" of the officials who are growing up in the 
service.^ 

It is beyond the scope of this article to discuss the methods which 
have been suggested or may be suggested for the development or 
advancement of this adminstrative life. It is enough to emphasize 

1 Human Nature in Politics, by Graham Wallas, Constable & ( o., I.ondon, 1910. 

2 But in a Government olTiee as certainly in a law court or laboratory effective thinking wiU not be done 
unless adequate opportunities and motives are secured by organization during the whole working I'fe of 
the appointed officials. (Mr. Wallas, Op. cit., p. 2()1.) 

But however able our officials are, and however varied their origin, the danger of the narrowness and 
rigidity which has hitherto so generally resulted from official life would still remain, and must be guarded 
against by every kind of encouragement to free intellectual development. The German Kmperor did good 
service tlie other dav when he claimed (in a semiofficial communication on the Tweedmouth letter) that 
the persons who are Kmgs and ministers in their official capacity have as fachnianner (experts) other 
and wider rights in the republic of thought. One only wishes that he would allow his o\«i officials after 
their day's work to regroup themselves, in the healthy London fashion, with labor leaders, and colonels, 
and schoolmasters, and court ladies, and members of Parliament, as indivitlualists, or theosophists, or 
advocates of a free stage or a free ritual. (Mr. Wallas, Op. cit., pp. 266-267.) 



POWEKS AND PROBLEMS OP THE FEDERAL ADMINISTRATIVE. 21 

in closing the vital importance of this personal feature of our great 
administrative problem. 

The traditional integrity of the Federal official is the peculiar 
pride of the Federal system. The roots of this integrity lie deep in 
the principles of civil service and national loyalty. Not moral, or 
constitutional, or political, are the problems wHich now confront 
this great department of our Government, but intellectual in the 
broadest sense. What can we do to stimulate true intellectual pro- 
gress among the rank and file of the administrative army ? How best 
shall the Nation whom they serve so faithfully strive to encourage 
among them that spirit of intelligent progress, of liberal thought, of 
free suggestion and hearty cooperation, and of f air-mmded, broad- 
minded protection for the rights of citizen and Government alike, 
that will raise the Federal administrative still higher and to the full 
dignity which it should hold within our State and which will make 
every position in the Government service what it should be, a post 
of honor, and the Government service itself a career to attract and 
satisfy the ambitions of the best men and women that our country 
can produce ? 

Jasper Yeates Brinton. 

Philadelphia, Decemler, 1912. 

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